Dr. K.S. Misra vs Visitor, Aligarh Muslim University, Vice Chancellor, Aligarh Muslim University and Registrar, Aligarh Muslim University

This Judgment has been overruled by : Visitor and Others Vs. K.S. Misra, (2007) 115 FLR 353 : (2007) 11 SCALE 5 : (2007) 8 SCC 593 : (2007) 2 SCC(L&S) 959 : (2007) 10 SCR 763 : (2008) 1 SLJ 381 : (2007) AIRSCW 5706 : (2007) 6 Supreme 107

Sushil Harkauli and Vikram Nath, JJ.—The petitioner initially worked as Lecturer in English in the Banaras Hindu University. He subsequently joined Aligarh Muslim University where he was confirmed in June, 1988. The petitioner claims that he had applied giving his option for counting of his past services for pensionary benefits within one year of his joining/confirmation.

Statute 61(6)(iv)(iii) of the First Statutes of the University prescribes the counting of past services for pensionary benefits provided such option is given and the amount of gratuity received from the previous employer is deposited by the employee with the University within one year.

Annexure-1 to the rejoinder affidavit of the petitioner is a photo-copy of the ''dispatch register'' of the University which mentions sending of the option for counting past: services of the petitioner on 30.1.89.

This rejoinder affidavit was served upon the learned counsel for the Aligarh Muslim University on 1.9.2003 but no reply or denial of this fact has been made so far.

In the case of Sri-La-Sri Subramania Desika Gnanasambanda Pandarasannadhi Vs. State of Madras and Another, the Supreme Court has laid down that the facts mentioned in the rejoinder affidavit can be taken into account while deciding the writ petition, provided sufficient time has elapsed since the date of service of copy of the rejoinder affidavit upon the respondent and no denial of it has been made.

Even otherwise it has not been shown to us as to what detriment would be caused to the University if the option of counting of past services of the petitioner for the purposes of pensionary benefits is made beyond limitation of one year prescribed by the Statute 61(6)(iv)(iii). Therefore, the time limit for applying for counting of past services for calculation of pensionary benefits would appear to be merely directory in nature and riot mandatory.

The learned counsel for the respondent has vehemently argued that this provision is mandatory but no reasons have been supplied in support of this contention of the learned counsel for the University.

On the contrary in a similar matter relating to the same University, being Writ Petition No. 27650 of 1988, Dr. Rameshwar Tandon v. Aligarh Muslim University, Aligarh and Ors., a Division Bench of this Court vide judgment dated 6.5,2004 held that even if the gratuity received from the previous employer is deposited beyond the required period of one year by the employee with the new employer, and with such deposit the interest for the delay is also deposited, the delay will not deprive the employee of the ( pensionary benefits. This in effect means that even the condition of making the deposit within time prescribed by the Statutes is merely directory and not mandatory. The judgment dated 6.5.2004 proceeds on the same assumption that no prejudice is caused to the University if the delayed payment is made to the petitioner along with interest.

In view of the aforesaid reasons we direct the University to follow the law laid down in the aforesaid Judgment of the Division Bench dated 6.5.2004, and-to calculate and intimate to the petitioner the interest which may have become due till date on the gratuity amount of Rs. 16,944.47 paise, which the petitioner received from the Banaras Hindu University. This intimation will be given by the University to the petitioner within six weeks from the date on which a certified copy of this order is produced before the Registrar of the University and the petitioner will deposit the said amount of interest along with the principal amount: of gratuity within next two weeks of receiving the intimation. Upon the said deposit of the principal amount as well as the interest, the petitioner''s past services in the Banaras Hindu University will be calculated and the payment of revised pension will start to be made accordingly by the University within six weeks of the deposit. The payment of the arrears will be made within two months of such computation.

The writ petition is allowed as directed above. No costs.